Tuesday, April 9, 2013

HB: 187

House Bill 187 went up for vote in the Montana Senate yesterday and passed, with amendments and with a sunset prevision of Sept. 1, 2015, by I think 97 to 3. The amendments to the bill addressed the issues with public safety as it made outfitters have to hire their assistants as employees being responsible for their actions and I believe they have to have some kind of safety training. (There are a couple more things but you can find the bill on-line for the details.) The sunset date means the bill would essentially die at that time and be up for review to either make further amendments or decide to make it a permanent fixture in our State statutes. The legislators would look at how often outfitters used OA's and what kind of impact the practice had on the industry.

I take this as an attempt to make everyone happy and recognize the compromises made. I definitely like that amendments that were made for insuring public safety. As for protecting my right as a guide to compete; I'm a little disappointed but I also know we were being considered when writing into the bill the 2 1/2-year trial period. I blame myself now though, for not starting sooner in expressing my concerns and not going to the right people first. I wrote a letter to the board, (to which the executive director did reply,) and kind of went after FOAM when what I should have been doing is writing to the legislators and going to the hearings...I'll be there in two years. I did learn a lot in the process, however, and would like to share some of that. If you don't want to hear it, thanks for reading and I'll get back to you on more fishing reports soon. If you're in for the long haul with me, hear it goes.

The Board of Outfitters was set up through the legislative process to protect the general public and their rights to recreate and to protect their safety when hiring outfitters and guides. By state statutes the board looks like this:

2-15-1773. Board of outfitters. (1) There is a board of outfitters.

(2) The board consists of the following seven members to be appointed by the governor:

(a) one big game hunting outfitter;

(b) one fishing outfitter;

(c) two outfitters who are engaged in the fishing and hunting outfitting business;

(d) two sportspersons; and

(e) one member of the general public.

(3) A favorable vote of at least a majority of all members of the board is required to adopt any resolution, motion, or other decision.

(4) A vacancy on the board must be filled in the same manner as the original appointment.

(5) The members shall serve staggered 3-year terms and take office on the day they are appointed.

(6) The board is allocated to the department of labor and industry for administrative purposes only as prescribed in 2-15-121.

(7) Each member of the board is entitled to receive compensation and travel expenses as provided for in 37-1-133.

I'm not sure why there was never a guide representation written into the bill but I assume it's because ultimately, it's the outfitter's responsibility to hire guides and oversee them to insure that their clients are safe. I think this is a huge oversight in the original statute since the guide is the one that spends most of the time with the client and is most directly involved with their safety and preserving the resources when out in the field. The only way the composition of the board could change would be to amend the bill or write a new one. That would take an act of legislation, which normally means a lawyer writes it, gets support, and then a legislator has to sponsor it. It then has to be voted on...(Remember that Capital Hill song you would here every Saturday morning watching cartoons?) There are groups out there that have the resources to go through this process in order to protect their constituents such as Fishing Outfitters Association of Montana or the Montana Outfitter and Guides Association who originally sponsored HB: 187.

FOAM actually called HB: 187, "A good idea gone bad." They did bring up some concerns with the bill and probably had a lot to do with the amendments that were made since they have a fairly substantial membership and with that, they have some leverage when lobbying for or against certain bills as their advisory board sees fit. The advisory board is supposed to represent their constituents, which is were I had a problem with who was representing my best interests. (I was a FOAM member for 6 years.) I truly feel that had the guides had a stronger voice, there would have been more of an effort to protect our rights in this bill.

It's also my understanding that although the HB: 187 wasn't the Board of Outfitter's legislation, they did have some influence in the amendments to HB: 187 before the final vote. Again, many adjustments were made to insure public safety but not much to protect the guide. Does that reflect that fact that there isn't a guide on the board? I'm not sure but I would have to believe it does.

So lets get back on track here. As written in the State Statute, the Board of Outfitters in responsible for licensing guides and outfitters and for upholding standards as determined by board rule:
37-47-201. Powers and duties of board relating to outfitters, guides, and professional guides. The board shall:

(1) cooperate with the federal government in matters of mutual concern regarding the business of outfitting and guiding in Montana;

(2) enforce the provisions of this chapter and rules adopted pursuant to this chapter;

(3) establish outfitter standards, guide standards, and professional guide standards;

(4) adopt:

(a) rules to administer and enforce this chapter, including rules prescribing all requisite qualifications for licensure as an outfitter, guide, or professional guide. Qualifications for outfitters must include training, testing, experience in activities similar to the service to be provided, knowledge of rules of governmental bodies pertaining to outfitting and condition and type of gear and equipment, and the filing of an operations plan.

(b) any reasonable rules, not in conflict with this chapter, necessary for safeguarding the public health, safety, and welfare, including evidence of qualification and licensure under this chapter for any person practicing or offering to practice as an outfitter, guide, or professional guide;

(c) rules specifying standards for review and approval of proposed new operations plans involving hunting use. Approval is not required when part or all of an existing operations plan is transferred from one licensed outfitter to another licensed outfitter.

(d) rules establishing outfitter reporting requirements. The reports must be filed annually and report actual leased acreage actively used by clients during that year and actual leased acres unused by clients during that year, plus any other information designated by the board and developed in collaboration with the department of fish, wildlife, and parks or the review committee established in 87-1-269 that is considered necessary to evaluate the effectiveness of the hunter management and hunting access enhancement programs.

(5) hold hearings and proceedings to suspend or revoke licenses of outfitters, guides, and professional guides for due cause;

(6) maintain records of actual clients served by all Montana outfitters that fulfill the requirements of subsection (4)(d);

(7) maintain records of net client hunter use.

Essentially, the Board of Outfitters creates and interprets the rules I have to live by and hears complaints and determines corrective actions if I don't follow those rules but again; there isn't a guide on the Board so who speaks on my behalf?

Organizations such as FOAM and MOGA are private groups we can choose to belong to that we hope fight for our best interests when new legislation is proposed or even sponsor legislation such as in HB: 187 or a great example is the work that FOAM did to protect our fishing access laws. Again, we hope these groups are lobbying for us and for the most part, they do but how can we fully trust that if we don't have adequate representation? (This is where the discussion with Robin Cunningham from FOAM comes in from a few blog entries ago. You can read the comments if you want.)  

Like I said, the Executive Director of the Board of Outfitters did respond to my letter, which did clear up what roles we all have in this process. She invited me to the next Board meeting in June where I could wait until there is public comment on agenda items to express myself. She also said that I could suggest topics or issues that could be added to the agenda and would allow me to speak to the board on them as long as I gave her enough of a notice. I thought that was cool and trust that this is an attempt to accommodate my concerns as a guide as it falls under the board's responsibility. As for legislation either being voted on or being proposed, that would have to be addressed in the legislative process, which includes contacting my legislator or supporting an interest group that I trust has my back.  

So if you're still reading it either means you're a geek like me that likes hearing about these processes or you have a vested interest in how this all shakes out and what we should be discussing in the future as it pertains to creating a fair and balanced culture in the industry where we can all compete.  

On HB: 187, we'll have to wait for a couple years to address that with our legislators. Keep an eye on how this legislation affects us and document it and then come prepared to the hearing or write your legislator.   On the issue with guide advertisement, this can be addressed with the Board of Outfitters. In many of our opinions, the rules on whether or not a guide can have a business card or even write a blog has been wrongly interpreted by members of the board. I'm still very unclear on what the actually ruling is but I do know it impacts the way I promote myself to clients for future booking requests.  

One last concern I have that has yet to be mentioned but definitely could hinder my right to compete is what's becoming common practice now with liability insurance. (If you've gotten this far you really need to keep reading because this will have an impact on you.) Many outfitters and shops are requiring guides to list them as additional insureds on their liability insurance. The Board of Outfitters does not require guides to have liability insurance. (For the guide, I think it's stupid not to have it because you could lose everything without it but there is no law, ruling or standard that says you have to have it.) Ultimately, it's the board and outfitters' responsibility to insure public safety. As a guide, we are also an important party in the process but the way the rules and standards are set, the outfitter oversees guides and has an added responsibility to endorse and hire competent guides. If something happens, the outfitter will be held responsible regardless because they hold the license to market themselves as a competent outfitting business that has to follow standards and rules to protect the public and insure their guides do as well.  

Where this gets messy is that many insurance companies are requiring the outfitters and shops to have the guides list them as additional insureds because in doing so, the guide's insurance would have to defend the outfitter in the case that a lawsuit ensues. That way, the outfitter's insurance company won't have to spend the money to defend their client until the guide's insurance company has either settled or has failed to resolve a suit. What this essentially does is displaces the responsibility for public safety from the outfitter to the guide.   The other, more immediate problem that comes up here is that for every entity that I have to list as an additional insured costs me $25 unless it's a government agency. This means, potentially every fly-shop and outfitter or an outfitter acting as the shop's outfitter could require me to list them. Last year that could have potentially cost me around $500.  

So this Spring I offered to help out a non-profit by donating a trip that they could auction off. In order to make everything legal, I told them they could run the trip through a shop that they have a relationship with and I would have their outfitter sign my license. That way it's really the shop donating the trip, I'm the one donating the time and the non-profit gets to make some money. The local shop however, is now requiring me to list the shop and the outfitter on my liability insurance as additional insureds so now this donation is going to cost me $50 on top of not making money that day for myself.  

Lets say I didn't donate the trip but wanted to work for the shop. Just to get my name on their list would cost me $50 and that wouldn't even guarantee that I would get hired. So now I have to decide what shops and outfitters lists to get on based on how much I want to spend at the beginning of the year and how likely it is that I even get hired. This practice severely limits my ability to compete or forces me to be loyal to one or two outfitters and leave my potential earning up to them.  

The problem here is that I have no idea who can even address this issue. Can the Board of Outfitters rule that outfitters can't force guides to list them? Should there be legislation created that insurance companies can't force outfitters or shops to discriminate against guides that don't list them? Any ideas? Maybe I should just shut it down and get what I get or maybe I should become an outfitter and further dilute the pool...   Keep 'em where they live...


  1. Russell:

    Adding an individual, business, or government agency as an 'additional insured' does not mean any of them are insured under an individual's liability policy. This is a common misunderstanding. Being an 'AI' means you will be informed if the insured's policy lapses or is terminated . . . that's it.

    As for an outfitter asking a guide to add them as an 'AI' to the guide's policy, that keeps the outfitter informed about the status of the guide's policy. It does not add a layer of additional coverage for the outfitter. Another common misunderstanding.

    You're correct to recommend guide's have liability insurance in place and list the right reasons. FWIW, having a liability policy goes a long way toward proving you're eligible for an Independent Contract Exemption Certificate, or ICEC.

    Finally, as of the last four years or so, adding 'AI's' to a FOAM liability insurance policy costs nothing, zip, zero, nada.

    Robin Cunningham

  2. That is a benefit of purchasing liability insurance through FOAM. However, my insurance company, and any other company that I know of, charges for each AI except for government agencies.

    As it was explained to me by an agent, by listing an additional insured on your policy, you are including them on your policy as an entity your insurance company would represent if a claim is filed against you. By doing so, the AI's insurance company wouldn't have to spend any resources on litigation if there was a question of negligence until the the policy holder's insurance company settled. I understand that I'm not insuring the outfitter or shop by listing them, however, if something happens to one of their clients while in my boat or under contract with me, it does give them another layer of protection; at least that's how it was explained to me.